Who Does the Killing

Who Does the Killing

The causation rules in the last section settle that a death the felony directly produces is charged to the felon whether or not anyone could have foreseen it. They say nothing about who must have brought the death about. A felony can be followed by a killing in which the felon never pulled a trigger, struck a blow, or set a fire: a confederate may shoot a store clerk, or a store owner's return fire may kill a bystander or one of the robbers. Whether the felony-murder rule reaches those deaths depends on the identity of the person who did the killing, and the answer changes with which side that person was on. The two subsections below take the sides in turn, beginning with killings by the felon's own confederates and ending with killings by victims and other third parties.

The majority position is that the killing must be committed by the felon or by an accomplice acting in furtherance of their common design.¹ This is often called the agency view, because the lethal act has to be the act of the felony's own participants. People v. Washington adopted it on facts in which a robbery victim fired at an accomplice who had pointed a revolver at him and killed the accomplice, and the prosecution invoked the felony-murder rule against a surviving participant in the robbery.² The court held that malice aforethought is not attributable to the robber when the victim does the killing. The statute reaches a killing committed in the perpetration of the robbery, and a killing by the victim is committed to thwart the felony, so reading the statute to cover it would stretch its words beyond common understanding.³

The court also refused to let foreseeability fill the gap. It is not enough, the court said, that the killing was a risk reasonably to be foreseen and that the robbery might therefore be regarded as a proximate cause of it.⁴ That holding fits with the strict-liability rule studied just above once the two questions are kept apart. When the felon or an accomplice does the killing, foreseeability of the particular death is not an element. When someone else does the killing, foreseeability cannot stand in for the missing identity. The reason lies in what the rule is for. Felony murder exists to deter felons from killing negligently or accidentally by holding them strictly responsible for the killings they commit, and deterrence of that kind works only through conduct the felon can influence.⁵ A felon chooses the weapon, the plan, and the partners, so the prospect of murder liability for a confederate's shot gives every participant a reason to restrain the others. A victim's decision to fire is a choice the felon neither makes nor directs. The majority added that the rule is widely criticized as usually unnecessary and as eroding the link between liability and moral culpability, and it declined to extend the rule beyond the function it serves.⁶

The dissent in Washington looked at the same facts from the opposite side. Its objection was that the decision tells armed felons they may brandish a gun in a victim's face without fear of a murder conviction unless they or an accomplice pull the trigger, and that this advance absolution removes one of the most meaningful deterrents to armed felonies.⁷ Two features of the majority's position blunt that criticism. A participant who did not fire is still answerable for a killing by a confederate acting in furtherance of the common design, as the first subsection explains.⁸ And a felon who starts a gun battle may be guilty of murder on ordinary malice, without help from the felony-murder rule, when a victim resists and kills. A defendant who for a base motive and with wanton disregard for life does an act carrying a high probability of death has malice in fact, so there is nothing to imply.⁹

Students lose this issue when they stop after finding a felony and a causal link and treat every death during the felony as felony murder. Identity is a separate filter that comes after the felony, the timing, and the causal link are established: ask who or what actually inflicted the death, and on whose side that person stood. On the agency view, a killing by a confederate acting in furtherance of the design falls within the rule, while a killing by a victim or bystander falls outside it and leaves the prosecution to prove ordinary malice.¹⁰ The first of those two sides, the confederates, is where the analysis begins.

Killings by Co-Felons

The agency view asks who inflicted the death, and the first answer it accepts is a confederate: a participant in the same felony who kills while the felony is under way. Every participant answers for that killing. Two doctrines produce the result when they operate together. The felony-murder rule makes the person who kills guilty of murder without proof of malice toward the death. The law of principals and accomplices, under which a person who helps commit a crime is responsible for it as though the helper had committed it alone, carries that guilt to everyone who took part in the felony. People v. Washington stated the combined rule for robbery: a defendant need not do the killing personally, and all persons aiding and abetting a robbery are guilty of first-degree murder when one of them kills while acting in furtherance of the common design.¹¹ Massachusetts breaks the same rule into two premises. The first is constructive malice, meaning the intent to commit the felony stands in for malice aforethought. The second is vicarious liability for every act resulting in death that a joint venturer, a participant in a shared criminal enterprise, commits in furtherance of the venture, so that the act of one is treated as the act of all.¹²

Both doctrines are needed because accomplice liability alone would not carry a killing to a participant who did not do it. In Massachusetts, a participant in an armed robbery is not guilty of assault with intent to murder when an accomplice shoots at an arriving police officer but does not kill the officer, unless the participant knowingly shared in the shooting with the intent to kill, even if the shooting was a natural and probable consequence of the robbery. If the accomplice's shot does kill the officer, the participant can be convicted of felony murder without having knowingly joined in the shooting or intended any harm to the officer.¹³ The difference follows from the structure of the rule. A felon who even accidentally causes a death in the course of a felony is guilty of murder because of the felony alone, so the prosecution's whole case against the killer rests on the felony. A participant who is an accomplice to that felony has committed the same felony, and complicity in it therefore supplies everything the prosecution needs against the participant as well.¹⁴

The Florida Supreme Court's reasoning in the case that became Enmund v. Florida shows the combination reaching a participant who was not shown to be at the victims' door.¹⁵ The jury convicted Earl Enmund and Sampson Armstrong of two counts of first-degree murder and one count of robbery after a plan to rob an elderly couple, the Kerseys, led to their being murdered.¹⁶ The Florida court acknowledged that there was no direct evidence that Enmund was present at the back door of the Kersey home when that happened. The only evidence of his part was the jury's likely inference that he was the person waiting in a car by the side of the road, a few hundred feet from the scene, to help the robbers escape with the Kerseys' money.¹⁷ Enmund argued that he could be guilty of no more than second-degree murder under Florida's felony-murder rule, and the court rejected the argument, reasoning that the felony-murder rule and the law of principals combine "to make a felon generally responsible for the lethal acts of his co-felon."¹⁸ On the evidence described, the court concluded that Enmund was "a principal of the second degree, constructively present aiding and abetting the commission of the crime of robbery," and that conclusion supported the first-degree murder verdicts under the felony-murder portion of the statute.¹⁹ Constructive presence means the law treats a participant as present at the robbery because the participant was stationed nearby to assist it.

What carried the conviction in that reasoning was Enmund's role in the robbery. The reasoning quoted in the opinion turns on his participation in the robbery, and it does not mention whether he entered the house, fired a weapon, or intended that anyone die. Once he was a participant, the lethal acts of the others were charged to him.²⁰ What penalty may follow for such a participant is a separate question, which a later section takes up under the constitutional limits on capital punishment. The point here is only that the murder conviction reaches him. A concurring opinion in Commonwealth v. Brown described the Massachusetts rule in the same terms. If an accomplice shot and killed a victim during an armed robbery, a defendant who sat outside in the getaway vehicle was guilty of felony murder even if the defendant had implored the accomplices to hurt no one. If the same shooting left the victim alive, the defendant in the getaway vehicle was guilty only of the armed robbery.²¹ The two outcomes differ in a single fact, whether the victim died, and the driver's own conduct is identical in both. A participant's instruction to the others not to hurt anyone is therefore no defense to felony murder.

The reasons for charging each participant with the others' killings come from how a group felony works. The participants choose the enterprise, choose their partners, and choose methods: who carries a loaded weapon, whether to confront resistance or avoid it, and whether to continue after something goes wrong. Each gains from the force that one of them supplies, and each can refuse to take part, withhold a weapon, or press the others to stand down. If murder liability attached only to the person who fired, the unarmed driver or lookout would bear none of the risk of a killing and would have no reason to insist on restraint. Making every participant answerable for every participant's lethal act gives each a stake in the others' restraint. That is the rule's deterrent purpose of discouraging felons from killing negligently or accidentally by holding them strictly responsible for killings they commit, applied to a group in which each member's conduct is partly in the others' hands.²² A practical reason appears in People v. Lewis, where the robbery victims were blindfolded and could not say who fired, and the defendant could not argue that his not being proven the actual shooter absolved him.²³ Attributing the act of each to all removes the need to identify which participant pulled the trigger.

The common design marks the boundary of this liability, and the boundary is as old as the doctrine. An English decision of 1701, quoted in Commonwealth v. Tejeda, held that when several persons are engaged in an unlawful act and one kills another, "it shall be murder in all the rest," provided that "[t]he killing must be in pursuance of that unlawful act, and not collateral to it."²⁴ People v. Gilbert applies the same limit to modern robbery cases. A defendant may be guilty of murder for a killing attributable to an accomplice's act, but only when the accomplice caused the death by an act committed in furtherance of the common design.²⁵ In People v. Lewis, a New York trial court applied the limit to a statute that requires the killing to occur "in furtherance of" the felony. The defendant conceded that he took part in a gunpoint robbery of a heroin shooting gallery, and he claimed that after he left, his female accomplice shot the apartment's owner, her former lover, for reasons of her own.²⁶ The court read "in furtherance" to require a relation between felony and killing that is more than coincidence of time and place, a nexus of logic or plan. A private motive breaks that nexus, because the killer is using the felony as an occasion to carry out a vendetta, and the killing becomes the killer's own act alone.²⁷ The court did not find such a motive in the record, and it declined to treat the killing as outside the felony merely because it was senseless and advanced neither the robbery nor the escape. A gratuitous killing remains an integral part of the felony so long as no private motive has made it the shooter's alone.²⁸

The pair of situations differs in one fact, the source of the shooter's reason to kill. A participant who shoots a clerk to stop an alarm kills in furtherance of the robbery, and a participant who uses the same robbery as cover to shoot an old enemy does not. In the second case the killing would not be attributable to the others as accomplices, because it lies outside the scope of the felony.²⁹

Legislatures sometimes write co-felon liability directly into the text, and sometimes temper it. Arizona's first-degree murder statute, as quoted in Ring v. Arizona, applies to a person who commits or attempts an enumerated felony, alone or with others, when in the course of and in furtherance of the felony or the immediate flight from it "the person or another person causes the death of any person," and it requires no mental state beyond what the felony itself requires.³⁰ The New Jersey statute discussed in State v. Martin goes the other way for the non-killer. It supplies a defense for a participant who did not commit, solicit, or aid the homicidal act, was not armed with a deadly weapon, had no reasonable ground to believe another participant was armed, and had no reasonable ground to believe another participant intended conduct likely to result in death or serious physical injury.³¹ Where a statute provides such a defense, it turns on those facts about the participant, and the participant's mere absence from the shooting does not satisfy it.

Students lose this issue when they treat physical absence from the killing as a defense. The Florida court held the waiting driver responsible for deaths he was not shown to have witnessed, and the Massachusetts getaway driver answered for a death even after urging the others to hurt no one. The facts that matter are participation in the felony and a killing within its common design.

Killings by Victims

The co-felon cases settle that the rule follows a killing to whoever inflicted it on the felons' side of the crime. The other half of the identity filter concerns a death inflicted from the opposite side: by the robbery victim who fires back, the police officer who answers the alarm, or the bystander who intervenes. On the agency view, felony murder requires that the felon or an accomplice commit the killing, so a death inflicted by any of those people falls outside the rule.³³ In People v. Washington a robbery victim resisted and shot one of the robbers dead. The court held that malice aforethought could not be attributed to the surviving robber, because a killing committed by the victim is not committed by the robber in perpetrating the robbery.³⁴ The court tied that result to the statute, which makes a murder first-degree when it is "committed in the perpetration or attempt to perpetrate" robbery.³⁵ A victim who kills to stop the crime acts to thwart the felony rather than to carry it out, and reading the statute to reach that killing would stretch its words beyond their common meaning. Foreseeability does not close the gap. The court said it is not enough that a resisting victim's shot was a reasonably foreseeable risk of robbery and that the robbery might therefore be called a proximate cause of the death.³⁶

Two separate reasons support the limit, and the second answers the strongest argument against it. The first is the rule's own purpose. The felony-murder rule aims to deter felons from killing negligently or accidentally by holding them strictly responsible for the killings they commit, and that aim is not served by punishing a felon for a killing the victim commits.³⁷ The second reason meets the contention that the rule also exists to prevent robberies. Every robbery carries some chance that the victim will resist and kill, and once the robbery is under way the robber has little control over whether that happens. An added penalty for the victim's act would distinguish between robbers solely on the response their conduct happened to induce in others, which would deter robbery only haphazardly, much as hanging one thief in a thousand chosen by lot would.³⁸ The incentive logic is worth stating in full. Strict liability changes behavior only when the actor can lower the risk by acting differently. A robber can leave the loaded gun at home or handle it carefully, but cannot choose how a frightened or determined victim will react.

Other courts reach the same limit by different routes. In People v. Wood, a gun battle with a police officer ended when a tavern owner who came to the officer's aid shot and killed an accomplice and an innocent bystander. The New York Court of Appeals upheld dismissal of the felony-murder counts even though the deaths were foreseeable results of the underlying assault, because felony murder embraces only killings committed by one of the criminals in carrying out the unlawful end, and not killings that merely coincide with the felony.³⁹ Students lose this issue by focusing on who died. The rule turns on who inflicted the death. A fleeing robber who fires and kills a bystander commits felony murder, because the felon inflicted that death.⁴⁰ The same bystander killed by the tavern owner's bullet cannot support felony murder on the agency view.

Two further authorities show what the agency limit rests on. In State v. Canola, a jewelry store owner resisting an armed robbery fatally shot one of four robbers. The court noted a study concluding that the early formulations of the rule concerned only situations where the felon or a confederate did the killing, and that English courts never held a felon guilty of a co-felon's death at the hands of the intended victim.⁴¹ Massachusetts supplies the attribution principle beneath that history. In Commonwealth v. Campbell, a draft riot left it unclear whether a rioter or a soldier inside the armory resisting the attack fired the fatal shot. The court refused an instruction that the defendant was guilty regardless of who fired, because a homicide must be the defendant's own act, actually or constructively, committed by the defendant's own hand or by someone acting in concert with the defendant.⁴² Canola asks what the rule historically covered, while Campbell asks whose act the law may treat as the defendant's. Both lead to the same result for a shooter on the resisting side.

The competing proximate-cause view treats the victim's shot as one more link in a chain the felon started. The dissent in Washington took this position. It reasoned that a homicide arising out of an armed robbery attempt is the direct causal result of the events the robbers set in motion, so when a victim fires the lethal bullet the felon is as responsible as when an accomplice fires or the gun discharges by accident.⁴³ The dissent also charged the majority with inconsistency. One charge was that the statute nowhere requires the killing to occur in order to perpetrate the felony, and if it did, accidental killings, which everyone agrees the rule covers, could not be said to occur to perpetrate a robbery either.⁴⁴ The other charge was that the majority denied malice could be attributed to a robber when the victim kills, yet said that a robber who initiates a gun battle may be guilty of murder when the victim resists and kills, and the dissent asked where the malice in the second case could come from if not from the felony.⁴⁵

Jurisdictions divide on the question. Illinois has upheld felony-murder convictions on a proximate-cause theory that requires only foreseeability, over dissents on both the agency ground and the ground that the rule was never meant to protect felons' lives.⁴⁶ Pennsylvania's own decisions show that the choice is one of theory and not of facts. A robber was held guilty of murder when the robbery victim shot and killed the robber's partner, because that death was a foreseeable consequence of joining the robbery. Three years later, on substantially the same facts with an intervening police officer as the shooter, the court overruled that decision and held that murder cannot rest on a shooting that is a justifiable homicide.⁴⁷ The court's reasoning was that the rule imposes liability for the acts of the felon or a cohort, and not for the act of a third party who retards the felony rather than aids it.⁴⁸

Rejecting felony murder for a victim's killing does not free the felon, because murder may still be proved with malice established the ordinary way. In People v. Gilbert, an accomplice was killed by a police officer during a robbery, and the trial court told the jury the defendants could be convicted of murder for that death solely because the robbery was its proximate cause. The Supreme Court held the instruction wrong, since it withdrew from the jury whether the officer's shot answered a shooting the defendants initiated or was fired solely to stop the robbery.⁴⁹ The court laid out what the prosecution must show on this route. Malice is implied when the defendant or an accomplice, for a base motive and with wanton disregard for life, does an act carrying a high probability of death, and initiating a gun battle is such an act. The killing must be attributable to that act, and a victim's self-defensive shot or an officer's shot in the line of duty is a reasonable response to the dilemma the felon created, not an independent intervening cause. Once murder is established this way, the felony statute may be invoked to fix its degree.⁵⁰ The route differs from felony murder in what the jury must find. Felony murder dispenses with the malice question once the felony and the killing are proved, while this route requires a finding of the act showing conscious disregard for life. Mere participation in an armed robbery does not supply that act. California has recognized the route where the felons' conduct was more outrageous, as where a confederate threatened to use a gun and acted edgy throughout the robbery before the victim shot him.⁵¹ Massachusetts reaches a similar place through the defendant's own conduct. A defendant who chooses a gun battle with intent to kill or do grievous bodily harm may answer for a third party's death even when the opponent fired the fatal shot, on the theory of the defendant's own act of engaging in the shootout, and not on joint-venture liability for the opponent's act.⁵²

Two versions of one robbery show where the line falls. A pharmacy robber displays a gun but does not fire, a frightened pharmacist shoots wildly, and a customer dies. On the agency view the robber is not guilty of felony murder, and absent conduct more outrageous than the armed robbery itself there is no implied-malice murder either.⁵³ Change one fact, so that the robber fires at the pharmacist first and the pharmacist's return fire kills the customer. Felony murder is still unavailable, because the pharmacist inflicted the death. The robber's own shot, however, is an act of conscious disregard for life, the pharmacist's reply is a reasonable response to it, and the robber is guilty of murder on ordinary malice, in the first degree if the felony statute so provides.⁵⁴ In a proximate-cause jurisdiction, both versions would support felony murder.